*Austrian Supreme Court allows “derogatory” Second Level Domains

Picture 2The Austrian Supreme Court (OGH 24.2.2009, 17 Ob 2/09g -Aquapol-unzufriedene-) issued a decision on the 24th of February 2009 which allowed an dissatisfied customer of an “alternative wall-drying-method” (utilizing a “gravomagnetic” energy to force moisture out of brickwork, please see picture no. 1) to have its website under a SecondLevelDomain (http://www.aquapol-unzufriedene.at) which consist out of the trade name of the company (“Aquapol“) and out of the German word for “unsatisfied” (“unzufriedene“). On his website the customer runs a form on which people can post their experiences with the company and their methods.

Picture 1

Picture 1

The court found that the customer had clearly not “used” the trade name (“Firmenschlagwort“) as it was not used to refer to the origin of the service and furthermore there was no likeliness of confusion as it was obvious for the court that the customer’s website was not the website of the trade name owner.

Civil protection § 43 of the Austrian Civil Code (ABGB) was refused as the court found that using the trade name of the company was the only way for the customer to make express his opinion (freedom of speech) and that such a usage should not be treated differently than critical statements in book-titles or headlines of newspaper-articles.

The LG Düsseldorf (30.01.2002, 2a O 245/01 “scheiss-t-online”) in a similar case decided in 2002 against the defendant as his website was registered under the domain “scheiss-t-online” and only contained critical texts about the German telecommunications company T-mobile. the OLG found a trademark infringement as the Domain-name was found compromising under § 14 (2) Z.3 dMarkenG.

The defendant (customer) also uploaded a scan of the judgement. If you’ve never seen a Austrian court decision this pdf might be worth a look. Very, very  authentic 😉

[Update: If you feel the need to gripe about a TM owner’s service practices you’ll find a nice guide here.]


6 Responses to “*Austrian Supreme Court allows “derogatory” Second Level Domains”

  1. 1 David from Sydney 03/11/2009 at 10:22

    What with the relaxation already planned for extensions next year (eg domain.nyc etc), adding these changes in, the internet is going to be very different in 5 years time! Billions upon billions of domain name options…

  1. 1 *Google U.S. trademark policy liberalization (Adv+) -again- « Austrotrabant’s Blog Trackback on 20/05/2009 at 16:59
  2. 2 Cambio en la política marcaria de Google para su avisaje en línea « iBlawg.cl Trackback on 13/06/2009 at 17:47
  3. 3 *Sect. 26 Austrian Data Prodection Act – “Lex Unheared Of” « Austrotrabant’s Blog Trackback on 06/11/2009 at 11:30
  4. 4 *Sect. 26 Austrian Data Protection Act – “Lex Unheared Of” « Austrotrabant’s Blog Trackback on 06/11/2009 at 11:35
  5. 5 *German Court Surprisingly Liberal on Derogatory Domains & Likeliness of Confusion Online: www.bund-der.verunsicherten.de « Austrotrabant's Blog Trackback on 23/01/2010 at 07:04

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